The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1887-05-02

brings it within the celebrated Illinois case
already cited in this Court.
Mr. F. NJ. Hatch. on behalf of the re-
spondent, said counsel had been driven in |
support of his motion to the position that |
nothing could be published at any time re-
specting any action at law until after the |
trial. He thought that position went alto
gether too far, and that the authorities |
cited were authorities which went far be-
yond what the Courts in modern times
would hold were the same questions sub
mitted to them. In the earlier cases the
Courts prevented any true publication of a
report of judicial proceedings. Even a
true report could not be published with
out the permission OF the Court. But it
was idle to cite old authorities of century
ago. The English Courts had entirely
abandoned the position laid down in. the
earlier cases. According to Hodges on
Libel, under the head of ''Priviledged Re
ports, every account of proceedings was
privileged unless the Court had prescribed
its publication. In the case of Watson VS..
Walters, in the Queens Bench Division,
Lord Chief Justice Cockburn laid down.
the law, saying that it was now.
well established that faithful and fair
reports, even if individual character did.
suffer thereby, were privileged, and the
publisher was neither civilly nor criminally
responsible. Malice was the test-legal
malice, not actual malice. AS a general
rule the advantage to the community was
so great that any occasional personal in
convenience must yield to the. public good.
This was grounded on the principle that
the Courts were open to the public. There
was no stopping the argument of counsel for
the plaintiff until it drove him to this point
And if, as the opposite counsel contended
there could be no publication of a charge
pending trial, there could be no publica-
ton of the report of that charge. Lord
Coleridge had laid down the principle that
the publication of proceedings was priVi-
legged if the report were fair and honest
and pointed out that the law of libel had
greatly developed the privileges of the press.
The full liberty of writer to comment upon
the public actions of public men had only
in recent times been recognized.
Mr.. Justice Preston interposed that the
question was not libel.
Mr. Hatch: Exactly; but to get at the
true principle of the law of contempt it was
necessary to see what the effect would be in
libel. Most of the cases cited by the oppo-
site counsel had some peculiar circum-
stances. The strongest one, that of the
Swansea Railway, was one in which certain
individual directors were sought to be in
volved in the acts of their fellow CONTRACT
tors Tenny's case (from the New Hamp-
shire Reports) was one in which the repu-
tation of a third party was concerned
That was the principal reason for the
Courts interfering. The Illinois case was
the only recent American case, and was
based upon extremely different facts
from those at bar. It showed how far the
Courts. went before taking any action at
all, and it also showed to what extent the
dissenting Judges went in regard to the
publication of what was plainly intended to
influence the course of the trial In this
case there were charges Of corruption
against the Court and even then three
Judges disseuted from the opinion which
held the defendant guilty of contempt, on
the ground that they refused to affirm that
their minds had been influenced by the
publication. The respondent was at least
meaning of the word. There had been no
disobedience of any order of the Court or
any disregard of an express rule. 1t was
to hold him guilty of constructive contempt
i'm doing what? If the article contained
unfair comment to prejudice the minds of
the Court or public Counsel went to that
extent, though he, Mr.. Hatch, failed to see
the philosophy of it,, it would be very
different matter. There was no attempt
made to prejudice the minds of the public,
besides which the public were not the tri-
bunal The case was not one to be tried
before jury drawn from among the pub
lie, and there was not even an examination
of witnesses. It was also claimed that
there was tendency to prejudice the mind
of the Court. Such an imputation must
have reasonable presumption.
Mr.. Justice Preston: The argument is
that you did not give them the opportunity
of denying it.
Mr.. Hatch said that was an abandon
ment of the first ground. There was moth
ing in this publication which the respondent
might not have discovered for himself and
published as a statement of facts. The
only element was whether or not there had
been contempt of Court. He (Mr. Hatch)
was arguing against extending the princi-
pie of constructive contempt where the par
ties act in ignorance of disobeying any rule
of Court. If there was no intention to
prejudice, but merely a fair statement, he
failed to see where the contempt came in
even in the case of a private Individual In
that OF public officer it was somewhat
different. The acts of public oficer'were
always liable to scrutiny. The opposite
counsel had argued that party is entitled
to protection against the publication of
charges against him. If that principle were
followed out to it's logical conclusion it
would prevent the publication of evidence
in the course of trial. He failed to see
how statement could be contempt if made
to-day and not contempt if made to-mor-
row.. IF this case had been called in the
process of a trial of weeks duration,
would it be contempt to publish everything
that took place from day to day? He
thought that ground could not be main
tanned in the present day, because, if SO,